First Amendment Rights of Employers Arguably Violated, But None Are Parties
WASHINGTON, DC, April 18, 2018 – San Diego has voted to join the law suit filed by the federal government against the state of California for three immigration-related statutes which are allegedly unconstitutional but the law suit may have a fatal flaw, suggests public interest law professor John Banzhaf, whose legal analysis that the federal movement against sanctuary cities is largely unconstitutional gained support when two federal judges agreed to stay earlier aspects of the same overall effort.
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A major part of the law suit targets the "Immigrant Worker Protection Act," (AB 450) which, in the words of the complaint, "regulates how private employers in California must respond to federal efforts to ensure compliance with federal immigration laws through investigations in places of employment. "
The complaint says the law provides that an employer "shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor," unless "the immigration enforcement agent provides a judicial warrant" or consent is "otherwise required by federal law."
Opponents are also concerned that it requires employers to notify employees and their authorized representatives of upcoming inspections of employment records "within 72 hours of receiving notice of the inspection," and also prohibits an employer or its agent from "provid[ing] voluntary consent to an immigration enforcement agent to access, review, or obtain the employer's employee records without a subpoena or judicial warrant." Finally, it objects that the law provides that an employer "shall not reverify the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code."
While these provisions do interfere with the efforts of the federal government to enforce immigration laws in a manner which is arguably unconstitutional, the direct prohibition affects employers.
More specifically, it appears to interfere with their constitutionally protected free speech rights because it makes it illegal to reverify employment eligibility, a form of speech. It also requires certain notifications to be made, arguable a form of coerced speech. Finally, it arguably also interferes with the free speech rights of employers because it prohibits them from allowing ICE to see what is in their records.
Statutes which limit speech are subject to very strict scrutiny in the courts, and can be upheld only if they are found to serve not just an asserted governmental interest, but a most compelling governmental interest. Moreover, they must be narrowly tailored to achieve that purpose, so that any restrictions which go beyond the bare minimum of what would serve that purpose must be struck down.
The problem for the government's suit is that these First Amendment rights and arguments belong to the individual employers and not to cities or federal agencies, and courts are very reluctant to permit parties (here governments) to seek to assert the rights of other parties (here the employers).
In short, by failing to find one or two employers who likewise oppose these California law, and to include them as named plaintiffs, they may have substantially weakened their chances of success.
Especially given the government's string of losses in court, which some blame in part on a certain judicial hostility, leaving out these major arguments could help doom at least part of the suit.